What are the requirements for an EB-5 visa versus an E-2 visa?

My father wired $600,000 to the United States and we started an E-2 visa for opening a jewelry store in Saint Augustine, Florida. However, the embassy refused to give him the visa and now I am thinking about trying for the EB-5 visa. Can we use the same funds for EB-5 that we used for the failed E-2 visa? What requirements are different for the EB-5 visa versus the E-2 visa?

Answers

An analysis of the facts may determine that you can use the E-2 investment funds for an EB-5 petition. The EB-5 regulations require that the EB-5 investment will create 10 full time jobs for U.S. citizens or permanent residents.

You can certainly use the same funds to qualify for either E-2 or EB-5, or both, but you need to meet the requirements. It would be important to know why the U.S. embassy in your home country refused your father's E-2 visa application. It could be that the refusal reason might apply equally to EB-5. You should have the denial reviewed by an experienced immigration attorney.

It is unlikely, the area may qualify for a reduced investment threshold of $500,000 for EB-5 (Targeted Employment Area or rural area). It should be researched further. The full investment threshold is otherwise $1 million for non-TEA or non-rural areas. EB-5 requires proof of lawful source of funds for the investment amount and job creation of at least 10 full-time permanent jobs for the investor. The business needs to be EB-5 compliant with a comprehensive business plan showing how the minimum number of jobs will be created. You should consult a qualified EB-5 and business counsel to discuss further details of your case.

John J Downey

Immigration Attorney

Answered onApril 22, 2015

I believe you could use the $600,000 investment for the EB-5 application. However you must then prove that the location of the business is in a high unemployment area known as a TEA and you would need to submit a comprehensive business plan showing how the investment would create 10 new jobs. The paperwork is much more extensive than an E-2. I would advise speaking with a immigration attorney well-versed in EB-5 applications.

The E-2 and EB-5 are very similar. EB-5, unlike E-2, has a specific job creation requirement of 10 jobs per $500,000 investment. The E-2 is a nonimmigrant (temporary) visa that can be renewed, while the EB-5 gets you on the path to the green card (even though it takes longer). There are other specific requirements for the business infrastructure as well. Please consult with an EB-5 attorney to assist you.

EB-5 investment must be $1 million instead of $600,000 unless the business is located in a Targeted Employment Area of either 20,000 or less population, a rural area or an area with more than 150% the national unemployment. I do not think St. Augustine, Florida falls under either of these two exceptions to the $1 million investment requirement for EB-5. However, providing that you could qualify for either the TEA exception or full million investment under EB-5 and could prove the legal source of funds, you will have to work with an experienced EB-5 attorney who does the business side of the EB-5 work so that they could help you prepare the proper business documents for EB-5 filing. I must caution you on tying the success of the business to the immigration benefits, as if this particular business does not succeed enough to hire 10+ full-time workers and maintain them until the removal of condition application gets approved almost five years from now, then your father will lose the permanent residency.

EB-5 requires $1 million rather than $500,000 unless the business will be in a Targeted Employment Area as defined by the State of Florida. The process is quite different and is started with a petition in the United States rather than a filing at the consulate. You must show the funds were lawfully earned and completely source the funds. There will need to be a physical location for the business, a legal entity established, and a detailed business plan including how 10 new full-time jobs will be required in the business within two years of petition approval.

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